As we enter into change of seasons, we see more and more employees being booked off sick for illnesses such as colds and flu. As part of an employee’s contract terms and aligned to legislation, the employees are required to submit a valid medical certificate against terms as outlined within the Contract of Employment, Company Policy and Law.
A valid medical certificate is detailed in the following acts as:
BCEA, Section 23 - “23.(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”
It is therefore clear that a valid sick note / certificate must state:
1. That the employee was / is unable to perform their contractual duties as a result of an injury or illness; and
2. That this opinion must be based upon the professional opinion of a medical practitioner.
a. It should be noted as an aside that any certificate that states that the medical practitioner saw the patient or was informed by the patient is strictly speaking not a valid medical certificate as the diagnosing medical practitioner did not declare in their professional opinion that the employee was unable to perform their duties due to a result from their injury nor illness.
b. These certificates are merely to state that the medical practitioner saw the patient.
The second requirement is that the certificate must be issued by a medical practitioner. A medical practitioner is described in the definitions of the Act as:
‘‘. . . . a person entitled to practise as a medical practitioner in terms of section 17 of the Medical,Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);”
The above-mentioned Act makes reference of another Act, the Allied Health Service Professions Act 63 of 1982. Practitioners mentioned in this Act must be registered with the Allied Health Service Professions Council in order to issue medical certificates. Employers must accept medical certificates from such practitioners as proof of incapacity in terms of the Basic Conditions of Employment Act.
Clinic Certificates
Employees will sometimes submit a note from a Clinic, to which it is not signed by a registered medical practitioner. Every clinic and every hospital have qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.
An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable. This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and, in such cases, you may treat the period of illness as unpaid leave.
It has become a trend for employees to apply for sick leave and then during such sick leave attend to various leisure activities. This is a form of dishonesty as dictated by Woolworths (PTY) LTD v CCMA and others PA12/2020, where an employee was charged and dismissed for “Gross Misconduct” in that he stated he was too ill for his shift yet travelled more than an hour to view and watch his favourite Rugby team play a match.
Employees who pretend to be too sick to work, and then expect to get away with attending a non-work-related activity on the basis of claiming sick leave and then enjoying the benefits thereof, should not expect to get away with their dishonest behaviour.
It is therefore extremely important to review each sick note received, that it is valid, and that the employee is not misusing his benefits afforded under the BCEA.
In the case that an employee does alter or amend a sick note, it is deemed fraud, and an immediate dismissal is an appropriate sanction in terms of the LRA.
